A question from West Australia:

I have been working in the mines for the last 2 years. Have recently changed sites and now on a site with quite an old ambulance. This troop carrier still has the long bench seat (side facing seats) with lap type seat belts. In a recent team meeting the 4 medics were asked by our supervisor on feedback on our equipment. The ambulance received the greatest amount of comment.

My question is what is the legality of side facing seats in ambulances? A couple of the other medics and I have spoken after this meeting and we have all heard that side facing seats are now illegal and against Australian Standards. I have done a bit of a web search and see a lot of talk about new proposed laws for years but nothing from a reliable source. I can also assume the rumor mill starts something and the facts get changed. If there are new laws is that only apply to new vehicles. How would this also apply to WHS legislation if the changes to remove side-facing seats in new vehicles was as a result of increased injury.

Surprisingly the vehicle standards say nothing about the direction of seats (see Road Traffic (Vehicle Standards) Regulations 2002 (WA) and Road Traffic (Vehicle Standards) Rules 2002 (WA)) – though it seems obvious that the driver’s seat should face the front.   The only relevant rule appears to be the rule which says “A seat for a driver or passenger in a vehicle must be securely attached to the vehicle” (Road Traffic (Vehicle Standards) Rules 2002 (WA) rule 26).

The Road Traffic Code 2000 (WA) (that incorporates the national road rules) has some more to say. Regulation 234 says that a child under 6 months must be in a ‘rearward facing child restraint’.  A child over 6 months but under 4 may be in a forward or rearward facing child restraint and, necessarily, not in one that is on a side facing seat.  There are no other references as to the direction of car seating, so I can see nothing to suggest that side facing seats are illegal.  If the design rules do change, the changes apply to vehicles registered, or equipment fitted, after the changes (Road Traffic (Vehicle Standards) Rules 2002 (WA) rules 13 and 14).

The Occupational Safety and Health Act 1984 (WA) says ‘An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees ) are not exposed to hazards’ (s 19).  Despite its mandatory tone it’s not possible to ensure that there are no hazards, so the obligation is to ensure a hazard free environment ‘so far as is practicable’.  What is practicable means

 reasonably practicable having regard, where the context permits, to

(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring; and

(b) the state of knowledge about —

(i) the injury or harm to health referred to in paragraph (a); and

(ii) the risk of that injury or harm to health occurring; and

(iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health; and

(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii);

In Kirk v Industrial Relations Commission & WorkCover Authority of New South Wales [2010] HCA 1 the High Court considered section 15 of the Occupational Health and Safety Act 1983 (NSW) (now repealed). That section said ‘Every employer shall ensure the health, safety and welfare at work of all the employer’s employees’.   The Court (French CJ, Gummow, Hayne, Crennan, Kiefel And Bell JJ) said

‘it is necessary for an employer to identify risks present in the workplace and to address them, in order to fulfil the obligations imposed by ss 15 and 16. It is also necessary for the prosecutor to identify the measures which should have been taken. If a risk was or is present, the question is – what action on the part of the employer was or is required to address it?

In other words, an offence is not established just because there is a risk or just because an injury occurs, the prosecution must also prove there was something that could be practically done to ameliorate the risk.

So are side facing seats illegal?  They are not illegal under the vehicle standards rules.  Do they breach OHS laws – no but they might if a risk assessment concluded in all the circumstances, taking into account where and how the ambulance is to be used, they posed a greater risk to the occupants than other types of seats and ‘the availability, suitability, and cost’ of alternatives. Clearly there are alternatives in the form of newer, better designed ambulances or retrofitting the interior of the ‘old ambulance’.  Whether those costs are warranted depends on the assessment of ‘the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring’.  A very low risk of a minor injury may not warrant replacing the ambulance fleet, a very high risk of a fatal injury probably does.